By Jerry Friedman, Esq.

Handling a motorcycle accident case is not like handling an automobile case.

Here are some handy tips to point out the differences.

Medical Payments

• There are no No-Fault PIP benefits for motorcyclists in either automobile or motorcycle policies because motorcycles are not automobiles per N.J.S.A. 39:6A-2(a). Motorcycle policies must provide pedestrian PIP, but motorcycle passengers are not pedestrians per N.J.S.A. 39:6A-2(h) or under PLIGA, N.J.S.A. 39:86.1.

• Medical benefits may be available through healthcare policies, Medicare or Medicaid. ERISA self- funded plans often limit or exclude motorcycles and may include subrogation/reimbursement provisions. Automobile Med-Pay under N.J.A.C 11:3-7.3(b) may be available if the motorcycle is  not “owned by or furnished for or available for the regular use of the named insured and family members,” under the New Jersey Supreme Court decision in Ingersoll v Aetna.

• Some motorcycle carriers offer Medical Payments coverage. This is not the same as automobile Med-Pay. These policies are not ERISA-protected and there is no right to subrogation/reimbursement per the 2001 decision in  Perreira v. Rediger. If there is no medical coverage available, your client can apply for Charity Care, N.J.S.A. 44:5-19.1 to cover hospital expenses. There is no statutory lien  for Charity Care.

• Motorcycle medical specials are boardable at the time of trial as they fall outside the statutory preclusion of N.J.S.A. 39:6A-12 under the 1996 Appellate Division decision in Adams v. Cooper Hospital.

Property Damage

• A motorcycle is very near and dear to its owner’s heart. Be very solicitous of your client’s preoccupation with getting their motorcycle repaired. Often times they are more preoccupied with the damage to their motorcycle than their injury claim.

Investigation

• It is important to develop an understanding regarding motorcycle operation. Take a motorcycle rider safety course, consult with a riding instructor or speak with someone who rides. The potential for product liability or dealer negligence issues may require a motorcycle autopsy by a certified or old-school motorcycle mechanic.

Lawsuit Limitation

• There  is no limitation on lawsuit option on motorcycle policies, but injured motorcyclists may be subject to the LOL in accordance with the 1996 Appellate Division decision in Koff v Carrubba.

Uninsured/Underinsured Motorist Coverage

• Attempts to exclude UM coverage for motorcycles have been held invalid as a result of the 2002 Appellate Division decision in  Rider v. First  Trenton Companies. Automobile carriers have been consistently adding “step down” clauses to limit UM/UIM coverage for “owned but not insured” vehicles. A thorough review of the automobile UM/UIM endorsement, as well as recent cases with regard to these clauses is required. Attorneys should review Katchen v. Geico, Granata et al. v. Rasizer et al. v. NJM and Cox v. Tomasso, et al.  
   
• Since N.J.S.A. 17:28-1.1a  does not mandate UIM coverage, claims are governed by policy language, which usually provides for damages which the insured is “legally entitled to recover.” The UIM carrier, therefore, has no greater defense than the tortfeasor. If the Koff analysis subjects the injured motorcyclist to, and the tortfeasor is protected by, the LOL, the motorcyclist’s UIM claim must overcome the LOL.

Buyers Guide and Coverage Selection Form

• The requirements of N.J.S.A. 39:6A-23 are only mandated for automobile policies. The immunity afforded by N.J.S.A. 17:28-1.9 is of no effect as to  motorcycles policies under Avery v. Wysocki. Policy reformation actions may proceed under pre-immunity theories of broker’s and/or agent’s negligence. Lawyers should review  Rider v. Lynch and Sobotor v. Prudential Property & Cas. Ins. Co. Always inquire how and where your injured motorcyclist obtained their minimum limits policy. Many policies are purchased via the carrier’s 800 number and handled by representatives not licensed as producers in New Jersey per N.J.S.A. 17:22A-26 - 48.

Loss Limitations

• N.J.S.A. 39:6A-4.5, section a, which  precludes uninsured drivers from suing for their damages does not apply to motorcycles as the statute only refers to automobiles.    However, section b, which precludes  claims by drivers who are found guilty or plead guilty to drunk driving, does include motorcycles  as the statute refers to motor vehicle accidents.

Representing an injured motorcyclist requires a thorough understanding of the laws peculiar to motorcycle accidents. Handling it as an automobile case will be problematic for you and your client.

Jerry Friedman is a solo practitioner in Marlton and Of Counsel to Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. He specializes  in representing injured motorcyclists. He lectured on  handling motorcycle accidents at the  Boardwalk Seminar^® and Meadowlands Seminar. He can be reached at jerryfriedman5656@gmail.com or at 609-654-6075.